Citation Nr: 21010710 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 19-27 582 DATE: February 25, 2021 ORDER Entitlement to an effective date prior to September 20, 2018 for the grant of service connection for chronic lymphocytic leukemia is denied. FINDING OF FACT 1. The Veteran submitted a VA Form 21-0996, Intent to File a Claim for Compensation and/or Pension or Survivor's Pension and/or DIC, on June 8, 2017. 2. The Department of Veterans Affairs (VA) did not receive any subsequent intent to file or claim for service connection for chronic lymphocytic leukemia on the appropriate form until the Veteran submitted a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, on September 20, 2018, over a year after the original intent to file was submitted. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to September 20, 2018, for the grant of service connection for chronic lymphocytic leukemia have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.114, 3.309, 3.160, 3.400, 3.816. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from November 1967 to September 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision. The Veteran testified at a Decision Review Officer (DRO) hearing in March 2019. He also testified at a Board hearing before the undersigned Veterans Law Judge in January 2021. Transcripts from both proceedings are associated with the claims file. 1. Entitlement to an effective date prior to September 20, 2018 for the grant of service connection for chronic lymphocytic leukemia. Generally, the effective date for a grant of service connection on an original claim is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). In general, "date of receipt" means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r) From March 24, 2015 forward, a claim for benefits must be filed on the standardized claim form prescribed by the Secretary. 38 C.F.R. §§ 3.150, 3.151. A veteran may also indicate their intent to file a claim for compensation by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file a claim, VA must provide the claimant with the appropriate claims form. Id. If a complete application for benefits on the form prescribed by the Secretary is received by VA within one year of receipt of the intent to file, VA will consider the formal claim to have been filed as of the date the intent to file a claim was received. An intent to file a claim must be submitted using one of three approved methods and must identify the general benefit and the claimant. The approved methods include a saved electronic application, written intent on prescribed intent to file a claim form, and oral intent communicated to designated VA personnel and recorded in writing. Id. In regards to the date of entitlement, the term "date entitlement arose" is not defined in the current statue or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober; 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the facts found. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). There is an exception to the provisions set forth above for cases involving presumptive service connection associated with exposure to an herbicide agent. 38 C.F.R. § 3.816 sets forth the effective date rules required by orders of the United States District Court in the class-action case of Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160 (N.D. Cal. May 17, 1991) (Nehmer Stipulation). For purposes of this section, a Nehmer class member includes a Vietnam veteran who has a covered herbicide disease. As the record documents that the Veteran served in Vietnam during the Vietnam War, he was a Vietnam veteran as defined in the regulations. See October 1969 Award of the Army Commendation Medal for the Veteran's meritorious achievement in the Republic of Vietnam from May 1968 to August 1969). According to 38 C.F.R. § 3.816(b)(2), a "covered herbicide disease" includes diseases for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002 pursuant to the Agent Orange Act of 1991. All chronic B-cell leukemias (including, but limited to, hairy-cell leukemia and chronic lymphocytic leukemia) were not added to the list of presumptive disabilities until August 31, 2010. 75 Fed. Reg. 53,202 (August 31, 2010). Notwithstanding the language of 38 C.F.R. § 3.816, notice accompanying the issuance of the final August 31, 2010 rule specified that the Nehmer provisions applied to the newly covered diseases, to include all chronic B-cell leukemias. Id. In addition, the final rule makes clear that the effective date of this rule is the date of publication in the Federal Register: August 31, 2010. Id. As the governing statute mandates that the effective date of the new regulation be the date of issuance of the final rule, the Secretary has no discretion to set an effective date for awards under the new presumptions earlier than the date the final regulation was issued. Specific to Nehmer class members with a pending claim for compensation relating to a covered herbicide disease, if VA previously denied compensation for the same disease in a decision issued between September 25, 1985, and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose. 38 C.F.R. § 3.816(c)(1). If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989 or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease (August 31, 2010 for chronic lymphocytic leukemia), the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816(c)(2). If the class member's claim referred to in § 3.816(c)(1) and § 3.816(c)(2) was received within one year of the class member's separation from service, the effective date of the award shall be the day following the date of the class member's separation from active service. 38 C.F.R. § 3.816(c)(3). For the following reasons, the Board concludes that assignment of an earlier effective date for service connection for chronic lymphocytic leukemia is not warranted. The record shows that on June 8, 2017, the agency of original jurisdiction (AOJ) received the Veteran’s VA Form 21-0996, Intent to File a Claim for Compensation and/or Pension or Survivor's Pension and/or DIC, in which the Veteran indicated that he intended to file a claim for compensation. A June 8, 2017 cover letter from the Veteran's representative noted that the documents submitted on that date included a 21-22, App. of Service Organization; a 21-0996, Intent to File; a 21-686C, Declaration of Status of Dependents; a DD 214, Copy of Discharge; and a copy of a marriage certificate. In reference to the intent for compensation, the letter added that the Veteran had a "526EZ." Notably, however, a VA Form 21-526EZ was not included in the list of documents that the representative submitted on that date. In a June 13, 2017 letter to the Veteran, the AOJ acknowledged its receipt of the Veteran's intent to file on June 8, 2017. The letter notified the Veteran that if his completed application was received within one year from the date that his intent to file was received, and the AOJ decided that he was entitled to VA benefits, the AOJ might be able to compensate him from the date it had received the Veteran's intent to file. If the Veteran's completed application was not received within one year from the date that his intent to file was received and the AOJ decided that the Veteran was entitled to VA benefits, the AOJ would only be able to compensate him from the date they received his completed application. The letter explained that the Veteran needed to complete, sign, and return, a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. The letter added that the Veteran was also able to submit his claim through eBenefits, and the letter provided information explaining that the eBenefits website allowed the Veteran to submit claims for benefits and/or upload documents directly to VA. On August 4, 2017, the AOJ received private treatment records. In an August 4, 2017 statement that accompanied the submission of these records, the representative noted that the documents submitted included private treatment records and did not indicate that any other documents were submitted on that date. On September 21, 2017, the AOJ received a VA Form 21-0960N-1, a Disability Benefits Questionnaire (DBQ) related to ear conditions (including vestibular and infectious conditions). In a statement dated on September 20, 2017 that was included with the DBQ, the representative noted that the documents that were submitted included a 21-0960N-1 Ear Condition DBQ. No other documents were identified. Also on September 21, 2017, the AOJ received private treatment records dated in May 2012. On September 20, 2018, the AOJ received the Veteran’s VA Form 21-526EZ in which he claimed service connection for leukemia. The form was signed by the Veteran on September 19, 2018. A September 20, 2018 Statement from the Veteran's representative noted that the documents submitted on that date included a 21-4138, Statement in Support of Claim; a VA Form 21-526EZ, Fully Developed Claim (Compensation); and a letter from a doctor. In the referenced VA Form 21-4138, the Veteran requested for his claim to be reconsidered. A November 15, 2018 rating decision subsequently granted service connection for chronic lymphocytic leukemia associated with herbicide exposure effective from September 20, 2018. On December 7, 2018, the AOJ received a VA Form 21-526EZ, that was signed by the Veteran on July 17, 2017. The Veteran listed leukemia in this form. In his December 7, 2018 VA Form 21-0958, Notice of Disagreement, the Veteran asserted that the original VA Form 21-526EZ was submitted on July 17, 2017 and originally denied before it was approved on November 15, 2018. The Veteran contended that an earlier effective date of June 8, 2017 should be awarded based on the date that the Veteran submitted the original VA Form 21-0996 Intent to File. The Veteran also resubmitted a copy of his June 8, 2017 VA Form 21-0996 on December 7, 2018. As the Veteran did not submit his claim on the standard form to VA within one year of the filing of his intent to file, he was awarded service connection for chronic lymphocytic leukemia effective from September 20, 2018. The Board initially notes that despite the Veteran’s reported in his December 2018 Notice of Disagreement that the AOJ denied his claim prior to the November 2018 rating decision, there is no record of any rating decision or decisional letter that denied the issue of entitlement to service connection for chronic lymphocytic leukemia prior to the November 2018 rating decision that initially granted service connection for this disability. The Board also notes that the Veteran has not maintained, and the evidence does not suggest, that an intent to file or a claim for service connection for a chronic lymphocytic leukemia was submitted prior to the intent to file received on June 8, 2017. As indicated above, the Veteran identified the VA Form 21-0996 submitted on this date as the "original 21-0996." See December 2018 Notice of Disagreement. Following the June 8, 2017 intent to file, the record does not show that the AOJ received a service connection claim for chronic lymphocytic leukemia on the appropriate form or an additional intent to file a claim prior to the receipt of the VA Form 21-526EZ on September 20, 2018. As the Veteran's claim for entitlement to service connection for chronic lymphocytic leukemia was received by VA more than one year after the August 2010 liberalizing regulatory revision, an effective date prior to the September 20, 2018 effective date under Nehmer and 38 C.F.R. § 3.816 is also unavailable. The Board acknowledges the Veteran’s contention that he submitted the VA Form 21-526EZ dated on July 17, 2017 within one year of his submission of the VA Form 21-0996 on June 8, 2017. In April 2019, the Veteran's representative submitted a document from a program called VETR SPEC which appears to include a record of past communications between the representative and the Veteran. The record includes columns with dates, types of communications, and communication details. The earliest communication is from June 8, 2017. One entry from this date indicates that the type of communication was "Filled out Form," and communication details was "submit." Another June 8, 2017 identifies the type of communication as "Document Uploaded," and the type of communication noted the Veteran's name prior to "intent for compensation June 8, 2017." The next entry is from August 4, 2017 and notes the type of communication as "Filled out Form," and the communication details as "submit." The next entry from September 18, 2017 notes the type of communication as “Document Uploaded,” and the communication details as the Veteran's name prior to "DBQ Ear Conditions 2017." The next entry from September 20, 2018 notes the communication type as "Filled out Form," and the communication details as "submit.' The next entry from September 21, 2017 notes the communication type as "Document Uploaded," and the communication details as "21-09060N-1 Ear Condition (Direct Upload [identifying number]) 9/20/17." The next entry from September 19, 2018 notes the communication type as "Filled out Form, " and the communication details as "21526EZ_[identifying number]." Another entry from September 20, 2018 notes the communication type as "Filled out Form," and the communication type as "submit." An additional September 20, 2018 entry notes the communication type as "Document Uploaded," and the communication details as "21-4138, 21-526EZ (Direct Upload [identifying number]) 9/20/18." There are also five entries from December 7, 2018. Under the communication type and communication details, one entry notes "Document Uploaded," and the Veteran's name before "526EZ 2017 07 17." Another entry noted "Document Uploaded" and the Veteran's name before "VBA-21-0966 2017 06 08." A third entry notes "Filled out Form" and "210958;" and a fourth entry notes "Filled out Form" and "submit." The fifth entry notes "Document Uploaded" and "21-096 (direct upload [identifying number]) 12/7/18." At the March 2019 DRO hearing, the Veteran provided testimony and his local Veterans Service Officer (VSO), M., testified as a witness. The Veteran's representative for the hearing explained that the Veteran filed an earlier VA Form 21-526EZ with his local VSO, and the Veteran believed that the claim had been submitted to VA. The representative indicated that prior to the availability of certain software in the state of Massachusetts, there was a chance that the form could have been misplaced. The Board notes that subsequent testimony indicates that the representative was referring to software for the state level of the Massachusetts Department of Veterans Services. The representative indicated that during the time period at issue, a national-level VSO had left, and people were traveling from Boston, Massachusetts two to three days a week to keep up with the work. As such, the state-level website was not "up to speed" at that time. Consequently, the representative acknowledged that the claim might not have been uploaded, or it might not have reached the personnel who were coming down from Boston to put everything into the system. The Veteran indicated that after his intent to file was submitted in June 2017, he gave his claim to M., his local VSO. Although the representative asked the Veteran whether he understood that it would be forwarded up to the state level before it was forwarded to VA, the Veteran indicated that he did not know what would happen next; but he had entrusted the claim to M. The representative then indicated that the it was the contention of the VSO at the state level that no such claim had been received, and it was lost in the communication based on all the available notes. M. then provided testimony indicating that she had faxed it to the state level along with a thick file of medical records and DBQs. M. separately confirmed that she had faxed these records to the state level of the Massachusetts Department of Veterans Services rather than directly submitting the information to VA. Although the Veteran indicated that he completed the VA Form 21-526EZ on the same date that he submitted his intent to file on June 8, 2017, he also indicated that he experienced memory difficulties. M. also acknowledged that the VA Form 21-526EZ in question was from July 17, 2017. The representative noted that the VSO did have records in its communication history from the state website regarding the medical records and DBQs that M. reported submitting with the claim. M. added that she did not have access to the “VetraSpec” system until the beginning of September 2017. M. then indicated that they had received the DBQ related to the ears after this point, and she was alarmed as not everything was submitted. Although M. indicated she initially did not understand that she was still able to submit these documents, M. indicated that she received instructions to upload the form into VetraSpec. The Veteran indicated that although he understood that he had a year to submit supporting information, he had not realized that the intent to file was different from a claim. He also indicated that he believed the claim had been submitted. In an April 2019 statement, the Veteran’s representative asserted that it was the Veteran’s contention that his VA Form 21-526EZ was with his ear condition DBQ that was uploaded into the VA system on September 20, 2017 as he would not have submitted the DBQ without this form. The statement added that the local VSO also stated that the VA Form 21-526EZ was sent to the National Veterans Service Officer (NVSO) at the Massachusetts Veterans Service Department. The Veteran had followed his VSO's instructions and been under the impression that his claim was in this system at the same time that his DBQ was filed. During the January 2021 Board hearing, the Veteran and M. provided testimony that was largely consistent the testimony from the March 2019 DRO hearing indicating that they attempted to file a VA Form 21-526EZ within one year of the June 2017 intent to file. As M. did not have access to the relevant software program used to submit all the claims, she had faxed the documentation to "our Providence regional office." The Board notes that based on M.'s testimony from the March 2019 DRO hearing specifically stating that she had submitted this form to the state level office of the Veterans Service Organization with which she was affiliated rather than to directly to VA as well as the April 2019 statement noting that the form was faxed to the NVSO, it does not appear that M. was referring to a VA Regional Office (RO). M. noted that although she had copies of the documents, she did not have copies of a fax coversheet as she did not use coversheets at that time. M. also was unable to recall the original date on which she had faxed this form. While the Board acknowledges the Veteran’s March 2019 DRO hearing testimony indicating that he did not fully understand the need to submit the VA Form 21-526EZ to VA within one year of the June 8, 2017 intent to file, the June 13, 2017 letter to the Veteran provided sufficient notice that submitting this form within the one year period after his intent to file was necessary in order for VA benefits to be granted effective from the date of receipt of his intent to file. Although the Board has additionally considered the reported history of events from the Veteran and M., a review of the DBQ submitted in August 2017 and the private treatment records submitted in September 2017 does not include a copy of the VA Form 21-526EZ dated on July 17, 2017. There is also no indication from the cover letters associated with these submissions that the representative understood either submission to include a VA Form 21-526EZ. In addition, while the entries from the VETR SPEC communication history include information to specifically indicate that an intent for compensation was uploaded on June 8, 2017; and a VA Form 21-526EZ was uploaded on September 20, 2018 and December 7, 2018; the entries related to the August 2017 and September 2017 submissions do not include information to suggest that the a VA Form 21-526EZ was included with the documents uploaded at those times. Although the Board has also considered M.’s reports indicating that her efforts to fax the VA Form 21-526EZ to her colleagues at the state-level of the Massachusetts Department of Veterans Services in 2017 were unsuccessful, the regulations related to effective dates are based on the date of receipt of such a form at VA rather than the date it was received by an authorized representative. 38 C.F.R. § 3.1(r). There is also no fax coversheet or other record to demonstrate that the relevant VA Form 21-526EZ was faxed directly to VA within the one-year period following the Veteran’s submission of the intent to file on June 8, 2017. As the September 20, 2018 VA Form 21-526EZ was received more than one year after the Veteran’s submission of an intent to file on June 8, 2017, the effective date of September 20, 2018 for the grant of service connection for chronic lymphocytic leukemia is correct. There can be no earlier effective date under the law. Further, as to when entitlement arose, even if it arose prior to September 20, 2018, the effective date would have to be the later of the two dates, which would be the current date of claim. Where, as here, the law, and not the evidence, is dispositive, the Board finds that there is no legal basis for assignment of an effective date earlier than September 20, 2018 for the grant of service connection for chronic lymphocytic leukemia, and the claim is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.